their deliberations. The full text of the court's instruction appears at pages 2 through 4 of the Trial Transcript from May 17, 1977. Petitioner objects to the following portions of the instruction:
(1) the judge emphasized the time and expense involved in trying petitioner remarking ". . . we are in the fifth week of this trial. And I think you realize what is invested as far as time, money and everything else."
(2) the judge instructed the court that "this case at a future time must be decided" and that "there's no reason to suppose that the case will ever be submitted to twelve persons more intelligent, more impartial or more competent to decide it; or that more or clearer evidence will ever be produced on one side or the other".
While the court agrees that it was unnecessary, and in fact, inaccurate to instruct the jury that this case "must be decided", when considered in context, this court cannot find that the instruction was so coercive as to have deprived petitioner of a fair trial and the right to a unanimous jury.
In the course of its instruction, the trial court made clear to the jurors that they had "a duty to reach a verdict", but then immediately added "if that's possible". The court was careful to explain that it had "neither the power nor the desire to compel an agreement upon a verdict". In asking the jurors to resume their deliberations, the court emphasized "the importance and desirability of reaching a verdict, provided, however, that you as individual jurors can do so without surrendering or sacrificing your conscientious scruples or personal convictions".
Read as a whole, the instruction is a forceful effort to encourage further deliberation. Nevertheless, it does not request the minority to succumb to the majority viewpoint, nor does it ask that individual uncertainty be sacrificed to achieve unanimity. In fact, the trial judge was careful to remind the jurors that it would, and could not compel a verdict and that no individual should surrender his or her own scruples. By admitting that it lacked the power to compel an agreement upon a verdict, the court conveyed to the jury a definite impression that it was not demanding a verdict.
Other courts have ruled that an instruction informing a jury that a case "must be decided" violated the Sixth Amendment by denying the jury's preprogative to return no verdict. However, in this case, the offending charge that this case must be decided followed a thorough and careful explanation by the court that it might not be possible to reach a verdict, that the court lacked the power to compel a verdict and that no individual juror was required to sacrifice his or her beliefs in order to reach agreement. Considered in this context, the language was not sufficiently forceful to "coerce" the verdict, nor did it mislead the jury into believing that they could not return no verdict. As the questionable language was tempered by an appropriate, albeit forceful invitation to undertake further diligent deliberative efforts, the court finds that the trial court did not violate petitioner's Sixth Amendment right in delivering this instruction.
The failure to grant the writ predicated upon the Portas recantation infects the remaining grounds as well. The conviction would clearly fall but for the resurrection of Portas' trial identification testimony. Without it, even the other grounds would provide independent bases for relief and certainly in the aggregate, they would be sufficient to undermine confidence in the trial's outcome.
No decision of this court has ever been made with greater reluctance. In the current debate over judicial restraint and judicial activism, one tends to forget that individuals as well as concepts and principles are involved. Upholding deference to state factual findings in this matter is a bitter exercise of judicial restraint, since it may result in a gross injustice.
The writ is denied. There is probable and significant cause to appeal.
This matter having been opened to the court upon the application of petitioner, Vincent James Landano, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and this court having heard oral argument and having considered the written submissions of all parties, and for the reasons set forth in the accompanying opinion filed this day,
IT IS this 29 day of September, 1987 hereby
ORDERED that petitioner's application for a writ of habeas corpus is denied; however, it is further
DETERMINED that there is probable and significant cause for appeal.